Asok Kumar Ganguly, J.
1. Both the review applications are directed against Judgments and Orders dated 13th July, 2005 passed by a Division Bench of this Court in connection with two proceedings under Section 9 of Arbitration and Conciliation Act. Questions of fact and law being similar in both the cases, both were disposed of by a common Judgment by the Division Bench.
2. The relevant facts of this case are that the parties entered into a contract for short-term improvement and routine maintenance of National Highway No. 2 between Barwa Adda to Panagarh (Km. 398.750 to Km. 512.00) on the basis of a composite contract. The said contract was arrived at on the basis of quotation submitted by Maheshwari Brothers Ltd., the petitioner herein in response to a tender enquiry floated by National Highways Authority of India (hereinafter referred to as the NHAI). It is asserted by the petitioner that initially when quotations were submitted, NHAI found that two items namely Bituminous Concrete and Fencing Beam had been quoted at a much lower rate and as such an explanation was called for by NHAI on those items. The petitioner replied to such enquiry and executed two bank guarantees, as was asked for by NHAI in terms of the contract for securing payment amounting to about Rs. 1.0 crores and about 1.27 crores respectively. Thereafter work order was issued in favour of the petitioner, which the petitioner duly accepted. The petitioner also accepted those work orders and there have been revised schedule of work which included two disputed items of work. The petitioner's case is that they completed the disputed work and thereafter refused to perform two items of work as, according to them, those were not required to be done by them. There followed some correspondence between the parties and the disputes started at this stage.
3. The petitioner's case is that they were always ready and willing to carry out the work forming the subject-matter of the disputed indents but the petitioner was not agreeable to do the same in the manner demanded by NHAI as the same was not in terms of the contract between the parties. According to the petitioner total value of indents, placed by the respondents upon the petitioner was originally Rs. 1,090.40 lacks excluding the disputed indents of Rs. 157.62 lacks which was subsequently reviewed and is recorded with the Letter of RITES dated 28th September, 2005.
4. The petitioner's case is that after the review of the indents the total value of the indents was reduced to Rs. 987.50 lacs and according to the petitioner this work was fully carried out and the dispute is with regard to the manner in which the work was carried out in respect of a few items covered by five supplementary indents. According to the petitioner the review of indents made by RITES in the letter dated 28th September, 2004 will go to show that the petitioner had carried out the entire work covered by the contract. Grievance of the petitioner is in respect of the same and that NHAI without suffering any loss threatened to invoke the bank guarantees. At that stage the petitioner filed two applications under Section 9 of Arbitration and Conciliation Act (hereinafter, referred to as the said Act) against such invocation of bank guarantee. Initially interim orders of injunction against threatened invocation of bank guarantee were passed on 28.07.04 and on 15.10.04 by a learned single Judge of this Court. But at the final hearing of the said proceeding the interim order of injunction in both the matters was vacated by the learned Judge by a Judgment and order dated 24.03.05. But the learned Judge directed NHAI to keep the proceeds of the two bank guarantees, after they are invoked, in a Fixed Deposit Account 'earmarked for the subject-matter involved therein' and directed NHAI that such sum will be kept in a suitable interest bearing fixed deposit account in any nationalised bank to be renewed from time to time till the disputes between the parties are resolved either by the Dispute Redressal Committee or by an appropriate arbitration proceeding under the contract.
5. This is not in dispute that against the said order no cross-objection or cross-appeal was filed by the NHAI but the petitioner filed two appeals against the said order. During the pendency of the appeals some interim orders were passed. Thereafter both the appeals were finally heard and the Judgment was reserved on 8th April, 2005 and in the meantime the interim orders were continued as a result whereof the invocation of the bank guarantees was stayed. Then both the appeals were disposed of by the Judgment and order dated 13th July, 2005 and the learned Judges were pleased to observe that there cannot be any injunction in respect of any attempt by NHAI for encashing the bank guarantee and the learned Judges have clearly held that no interim order could be passed on Section 9 application and the learned Judges were also of the view that there can be no question of directing the NHAI to keep the proceeds of the bank guarantees in the Fixed Deposit as was directed in the Judgment under appeal.
6. Against this Judgment and Order two applications for review were filed by the petitioner and they were assigned to this Bench.
7. The matter was heard at length.
8. The learned Counsel appearing for NHAI raised various questions on the maintainability of this review petition in a proceeding under Section 9 of the said Act.
9. It was argued that the said Act being a consolidating and amending act is a complete code in itself. The said Act does not confer any right of review and it was argued that the right to seek review being a substantive right unless it is specifically conferred it must be deemed to be excluded. The learned Counsel also relied on Section 5 of the said Act. According to the learned Counsel Section 5 makes it clear that in matters governing Part I of the said Act judicial authorities are restrained from intervening in matters except where it is so provided. It was therefore urged that there is no express provision for review and by reason of the provision of Section 5 of the Act, the right to review is clearly excluded. It is also urged that exercise of power under Section 9 of the said Act is a power which is to be exercised in aid of arbitral process. As such the provision of Section 5 of the said Act is clearly attracted in connection with any proceeding under Section 9 of the said Act.
10. Learned Counsel for the review petitioner also raised various contentions in order to substantiate that the petition for review is maintainable. The learned Counsel submitted that the said Act may be a complete code for arbitral law, but the same is not a complete code for the procedure which is to be followed by a Court in deciding matters which come before it. As Such, the Court should follow the normal procedure of a Civil Court while deciding a proceeding under the said Act. It was also submitted by the learned Counsel for the petitioner that review by the Civil Court of its own order in a proceeding under the said Act, has not been excluded either expressly or by necessary implication. It was also stated that Code of Civil Procedure is applicable to the Courts as defined under Section 2(e) of the said Act. In view of the said definition right of review of a Civil Court proceeding is also available in the instant case. Various decisions have been cited on behalf of the parties.
11. Since a decision on this question goes to the root of the matter, this Court is of the opinion that this question should be decided first.
12. For better appreciation of the questions involved in this case the definition of 'Court' given under Section 2(e) of the said Act is set out below:
2. Definition.
(e) 'Court' means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject matter of the arbitration if the same had been the subject matter of a suit, but does not include any. Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes.
13. Since the proceeding arises out of an application under Section 9 of the said Act, the provision of Section 9 is also set out below:
9. Interim measures, etc. by Court.-A party may, before or during arbitral proceedings or at anytime after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Court-
(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or
(ii) for an interim measure or protection in respect of any of the following matters, namely:
(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement;
(b) securing the amount in dispute in the arbitration;
(c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;
(d) interim injunction or the appointment of a receiver;
(e) such other interim measure of protection as may appear to the Court to be just and convenient,
and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.
(underlined by Court)
14. On a harmonious reading of Section 2(e) and Section 9 of the said Act, it appears that under the said Act the Court means the principal Civil Court of original jurisdiction in a District and the same also includes the High Court in exercise of its ordinary original civil jurisdiction which has jurisdiction to decide questions which form subject matter of arbitration as if the same had been the subject matter of a suit.
15. No provision similar to Section 9 was there in the previous Act of 1940.
16. Section 9 authorises the party to come for interim relief before a 'Court' either before or during the arbitral proceeding or at any time after making of the arbitral award and before its enforcement.
17. When Court is approached for an interim relief the Court shall have the same power for making orders as it has for the purpose of and in relation to any proceeding before it.
18. It is thus clear that while dealing with a proceeding under Section 9, the Court shall have the same power for making orders as it has for the purpose of and in relation to any proceeding before it.
19. It has been argued before us by the learned Counsel for the petitioner that the review is a known proceeding before a Civil Court and there is nothing in the language of Section 9 to exclude the remedy of review. He argued that, on the other hand, the concluding part of the Section 9 suggests that the Court, as defined under Section 2(e) of the said Act, shall have to follow the procedures which are available to it in connection with any proceeding before it. This Court finds a lot of substance in this argument for the reasons discussed below.
20. The said Act does not lay down any special procedure which is to be followed by a Court in an adjudication relating to arbitration proceeding. The ordinary procedure which is available to a Civil Court shall therefore be adopted in the adjudication of an arbitration dispute under the said Act. Reference, in this connection, may be made to Section 36 of the said Act. Section 36 expressly refers to the provisions of the Code of Civil Procedure in the matter of enforcement of an award. Section 19 of course provides that arbitral Tribunal shall not be bound by the Code of Civil Procedure or the Indian Evidence Act and that is only in so far as the arbitral Tribunal is concerned and not the Court. It is obvious that arbitral Tribunal and the Court does not mean the same thing and have been treated differently under the said Act. This is clear from the definition of 'arbitral Tribunal' under Section 2(d) and the definition of 'Court1 under Section 2(e) of the said Act.
21. Reference, in this connection, may be made to the decision of the Supreme Court in the case of National Sewing Thread Co. Ltd. v. James Chadwik & Brothers reported in : [1953]4SCR1028 . In that case the Bombay High Court was dealing with an order of the Registrar of Trade Mark and against the order of the Registrar of Trade Mark the appellant, National Sewing, preferred an appeal to the High Court of Bombay under Section 76 of the Trade Marks Act. Justice Shah of Bombay High Court allowed the appeal and the order of the Registrar was set aside. From the Judgment of Justice Shah, an appeal was preferred by the respondent James Chadwik under clause 15 of the Letters Patent of the Bombay High Court. The questions which arose were whether the Judgment of Justice Shah was subject to an appeal under clause 15 of the Letters Patent and whether Clause 15 of the Letters Patent could be attracted to an appeal preferred to the High Court under Section 76 of the Trade Marks Act.
22. The learned Judges of the Supreme Court found that the Trade Marks Act does not provide or lay down any procedure for future conduct or career of the appeal in the High Court. Therefore, the learned Judges held that once an appeal had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the charter under which the Court is constituted and which confers on it the method and manner of exercising jurisdiction.
23. The learned Judges of the Supreme Court held that this is a well established principle flowing from the decision of the National Telephone Co. Ltd. v. Post Master General reported in 1913 Appeal Cases 546 where Viacount Haldane, Lord Chancellor, opined as follows:
When a question is stated to be referred to an established Court without more, it in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decision likewise attaches.
24. In National Sewing (supra) it was noted that similar view was expressed by Their Lordships of the Privy Council in two other cases namely in Adaikappa Chettiar v. Chandra Sekhara Thevar and also in the case of Secretary of State for India v. Chellikant Rama Rao reported in AIR 1916 Privy Council 21.
25. Similar views have been expressed by the Apex Court in ITI Ltd. v. Seimens Public Communication Network Ltd. In ITI Ltd. (supra), the Apex Court dealt with the provisions of the said Act and considered whether provisions of Civil Procedure Code is applicable to a proceeding under the said Act. The Apex Court found that there is no express provision in the said Act excluding the application of the Code and from that the Court deduced 'when there is no express exclusion, we cannot by inference hold that the Code is not applicable' (Para 10, page 2311 of the report). In coming to that conclusion, the Court relied on the ratio in the case of Bhatia International v. Bulk Trading S.A. and Anr. reported in AIR 2002 SCW 1285. The Court further held that jurisdiction under the said Act has been conferred not on a designated person but on a Civil Court as defined under Section 2(e) of the Act. In that view of the matter the Court specifically opined 'proceedings before such Court will have to be controlled by the provisions of the Code'. The Court also held that in the application of the Code to a proceeding under the said Act, Section 5 of the said Act does not create a bar. That is why Supreme Court held that since revisional jurisdiction is not specifically barred, as a second appeal is, revision will lie from the appellate order. Such a revision is not barred even in view of Section 5 of the said Act.
26. Justice Dharmadhikari, another learned judge in ITI, in a concurring opinion, held that when a special Act, obviously meaning the said Act, confers a jurisdiction on an established Court, as distinguished from a 'persona designate, without any words of limitation, then the ordinary incident of procedure of that Court is attracted (Para 19, page 2313 of the report).
27. In coming to such conclusion, the learned Judge relied on the decision in National Sewing Thread (supra) and also the Judgments noted in National Sewing Thread.
28. By way of refuting the aforesaid position in law, the learned Counsel for NHAI relied on several decisions starting from the case of Patel Narshi Thakershi and Ors. v. Pradyuman Singhji Arjun Singhji reported in : AIR1970SC1273 . In that case what was considered was the right of the State Government to review its own order. It was held that there was no such power under Section 63 of Saurashtra Land Reforms Act. In that context it was held that the right of review is not an inherent power, it has to be conferred by law either expressly or by necessary implication.
29. Here we are not concerned with the question of grant of power of review to an administrative or a quasi-judicial authority. The question here is whether right of review is available to at Civil Court, which is guided by the Code. The obvious corollary from this question is whether the procedural powers of a Civil Court under the Code are attracted to a proceeding before a Court, as defined under Section 2(e) of the said Act, while the Court is deciding a 'lis' between the parties under the said Act. The Apex Court answered these questions affirmatively in ITI, while construing the provisions of the said Act. So the decision in Patel Narshi has no relevance.
30. Similarly the decision of a learned single Judge of Orissa High Court in Food Corporation of India v. Bibhuti Bhusan Patra reported in : AIR1987Ori230 did not at all deal with the question involved in this case. Before Orissa High Court, the decision in National Sewing was not cited and the questions which were discussed in National Sewing were not even addressed. Therefore the decision in Food Corporation of India does not throw any light on the points at issue here.
31. Similarly in Gauri Singh v. Ramlochan Singh reported in AIR 1948 Patna 430, cited by the learned Counsel for NHAI, the question was whether an award based upon an oral submission can be enforced under Arbitration Act, 1940. The Court held that Section 14(2) of the Act can only be read as referring to awards based on written arbitration agreement. The Act, being an exhaustive act, contained no provision for enforcement of an award based on oral submission. So such an award cannot be enforced. The powers of Review of a Civil Court under the Code were not even remotely in issue. The issue here is whether the Court under the said Act is invested with the powers of a Civil Court under the Code. The question has been affirmatively answered in ITI (supra). So the reliance on Gauri Singh is misplaced.
32. The learned Counsel also relied on the decision of Queen's Bench in the case of R. v. Middlesex Justices, Exparte Schock reported in (1965)2 All England Reports 68.
33. That case dealt with an Appellate decision by Quarter Sessions under Section 1 of Quarter Sessions Act, 1849 from a decision of Betting Licensing Committee. The Bench held that para 21 of Schedule 1 to Betting, Gaming and Lotteries Act, 1963 is a self-contained Code dealing with procedures of appeal and held that Section 1 of Quarter Sessions Act, 1849 did not apply. The Bench held that Quarter Sessions had jurisdiction to hear the appeal although the notice did not set out the grounds of appeal.
34. This decision was not on the power and jurisdiction of a Civil Court and as such has no relevance. Apart from that the decision did not accept the technical argument on the maintainability point.
35. The other decision cited on this point was the decision of the Supreme Court in the case of Upadhyaya Haragobind Devshankar v. Dhirendra Nath Virbhadra Singhji Solanki and Ors. reported in : [1988]2SCR1043 .
36. It was a decision on an election petition. The Supreme Court held that High Court can hear appeal from an order of a single Judge under clause 15 of the Letters Patent of the High Court under Ordinary Law. But High Court cannot exercise its Letters Patent jurisdiction to hear an appeal from an interlocutory order passed in the course of trial of an election petition. The Supreme Court held that the jurisdiction of the single Bench of the High Court is a special jurisdiction under the Act and which is conferred on the High Court by virtue of Article 329(b) of the Constitution. Referring to Section 116A of the Representation of People Act, the Apex Court held that appeal from an order of the High Court under Sections 98 and 99 of the Act shall lie to the Supreme Court on any question whether on law or facts. In that context the Supreme Court held that right of appeal under clause 15 of the Letters Patent before the Division Bench was excluded.
37. In coming to its decision, the Supreme Court took into account is the history and the scheme of the Act and the intention of the Parliament that at the level of the High Court only the Judge who is asked by the Chief Justice to try an election petition should be the sole Judge to decide any question arising out of any election petition and at the appellate stage. Supreme Court alone can deal with the matter arising out of an election petition. Jurisprudentially election laws and trial of election petition have special features and trial of election petition is controlled directly under part XV of the Constitution.
38. Here High Court has been conferred jurisdiction under the said Act to function as a civil Court and all the attributes of a litigation before a civil Court are attracted. The ratio in Upadhyaya, being rendered in an election case, which stands on a totally different footing, is not at all applicable here.
39. Two other decisions of the Supreme Court have been cited by the learned Counsel questioning the maintainability of the Review petition. Reliance was placed on the decision in the case of Munshi Ram v. Banwari Lal reported in : AIR1962SC903 . The decision was dealing with the question how parties can challenge an arbitration award and it was held that an arbitration award cannot be challenged except in accordance with the provision under the Arbitration Act, 1940. But the Court held where an award has been filed in Court and then parties entered into a compromise modifying the mode of payment and which was not outside the award, there was nothing in the Arbitration Act 1940 which disentitles the Court from taking note of the agreement and incorporating the same in the award and the decree cannot be called a nullity on that ground (para 20, page 910 of the report). This Court fails to appreciate the relevance of this ratio to the points at issue in the instant case.
40. The other decision of the Supreme Court was given in Superintending Engineer v. B. Subha Reddy reported in : [1999]2SCR880 . In that case, it was held that right of appeal from various orders passed under the Arbitration Act, 1940 was governed by Section 39 of the said Act which excludes the application of clause 15 of the Letters Patent. Following the same it was held that the substantive right of cross objection, under Order 41 Rules 22 of the Code of Civil Procedure which is equivalent, to appeal stands excluded.
41. From a perusal of Section 41 of Arbitration Act 1940. it is clear that provisions of CPC will apply to all appeals under this Act. Cross appeal was not permitted to be filed under Section 39 of Arbitration Act 1940 and the Court held that an appeal being a creature of statute such a right of appeal cannot be read into Section 41 of the Act. The Court came to this conclusion as specifically right of appeal was conferred under Section 39, to the exclusion of a right to file a cross-appeal. If there had been a specific provision in the Arbitration & Conciliation Act, 1996 with regard to review then certainly the power of review would have been totally controlled under that statutory dispensation. But the statutory silence in the said Act about Review does not rule out the power of review of a Civil Court under the said Act since it is governed by the Code.
42. Therefore this decision does not throw any light on the maintainability of a Review proceeding under the said Act.
43. Reliance was also placed on the decision of Calcutta High Court in the case of Prqfulla Chandra Karmakar and Anr. v. Panchanan Karmakar reported in AIR 1946 Calcutta 427. Reliance was placed on that decision in order to contend that even though Section 41 of Arbitration Act 1940 makes the provision of CPC applicable, the Division Bench of Calcutta High Court held that only the procedural rules of CPC will apply to arbitration proceedings. As such it was held that a Court cannot record a compromise under Order 23 Rule 3 of CPC in an application for setting aside an award under the 1940 Act.
44. The ratio in Prafulla Chandra was considered in great detail by Supreme Court in Munshi Ram v. Banwari Lal reported in : AIR1962SC903 . In paragraph 19, page 910 of the report the Apex Court, while dealing with the power of the Court to record a compromise agreement in a proceeding under the 1940 Act, referred to the decision of the Privy Council in Hemanta Kumary's case AIR 1919 Privy Council 79 and held as under:
The power to record such an agreement and to make it a part of the decree, whether by including it in the operative portion or in the schedule to the decree, in our opinion, will follow from the application of the Code of Civil Procedure, by Section 41 of the Arbitration Act and also Section 141 of the Code.
It was clarified further as follows:
There is nothing in the Arbitration Act, which disentitles the Court from taking note of an agreement of this character, and, in our opinion, the decree cannot be characterized as a nullity on this ground.
45. Therefore the ratio in Prafulla Chandra is substantially watered down. Subsequently the decition in Munshi Ram was followed by the Supreme Court in R. McDill & Company Ltd. (1992)2 SCC 648 and it has been held that provisions of Order 23 will apply to applications filed under Section 34 of 1940 Act.
46. In view of such consistent opinion of the Apex Court, the ratio in Prafulla Chandra cannot be any longer considered as good law.
47. On the principle that the said Act is a complete Code, reliance was placed on some more Judgments by the learned Counsel for NHAI and one of them was a Judgment in the case of Smt. Rukhmini Bai Gupta v. Collector, Jabbalpur and Ors. reported in : AIR1981SC479 . In that case the Apex Court held when an award has been passed in terms of agreement between the parties, the same cannot be challenged by filing a writ petition and the procedure under the Act, in that case it was 1940 Act, must be followed. It was pointed out that under the 1940 Act Section 32 bars a suit on any ground whatsoever, for contesting an award and it further provides that no award shall be enforced, set aside, amended, modified in any way except as provided in the Act. Therefore, a challenge to an award under Article 226 of the Constitution was never contemplated and was ruled out. This principle has no application on the points which are debated in this case. Reliance was also placed on another Judgment which was rendered by the Division Bench of Punjab & Haryana High Court in the case of Hind Samachar, Jalandhar, reported in (2002)4 Company Law Journal 1. In that case the question which was to be decided was summed up in para 15 (Page 15 of the report). It appears that the question was whether the appellate remedy provided under Section 10F of the Companies Act 1956 would get attached to a proceeding which is decided by the Company Law Board under Section 8 of the said Act and it was answered in the negative in view of the provisions of Section 37 of the said Act which makes it clear the orders from which an appeal can be filed and by using the words 'and from no others'. While coming to the said conclusion the learned Judges relied on the principles decided by the Apex Court in National Sewing Thread (supra). It is therefore clear that the question which was decided in Hind Samachar (supra) was a totally different one but the principle in National Sewing Thread was reaffirmed. Therefore, the decision in Hind Samachar (supra), instead of assisting the learned Counsel for NHAI, goes against his contention.
48. Reliance was also placed on another decision reported in (2004) 1 Arbitration Law Report 409 by the learned Counsel for NHAI. In that case the question for decision was whether provision for attachment under Order 38 Rule 5 of the Code is applicable to the provisions for attachment under Section 9(ii)(b) of the said Act. It was held in paragraph 10 page 417 of the report that Section 9 of the said Act is a substantive provision and as such, in a special provision of that nature, the exercise of power cannot be restricted by importing the principles of Order 38 Rule 5 of the Code. But while coming to the said conclusion the learned single Judge accepted 'that for want of specific exclusion of the Code of Civil Procedure in the Act of 1996 it cannot be inferred that the Act was not applicable but that would not mean that the provisions of the Code have to be read into it as it is when the Court exercises its power as prescribed in the Act of 1996'. The learned Judge further held that where the said Act is silent the provisions of the Code shall be applicable.
49. This Court is of the opinion that if the provision for review under the said Act had been specified, it could have been said that in view of such prescribed procedure, Section 114 or Order 47 Rule 1 of the Code stands excluded. But since the said Code is silent, the provisions of CPC are attracted.
50. Now coming to the question whether Section 5 of the said Act excludes the application of the said Code to a proceeding before a Court under the said Act, this Court finds that this question has been given a quietus by the Judgment of the Supreme Court in ITI Ltd. (supra). In ITI Ltd. (supra) Supreme Court held specifically that Section 5 of the said Act is no bar to the invocation of the revisional jurisdiction of the said Court to a proceeding under Section 37 of the said Act.
51. Following the same it can be said that Section 5 cannot be a bar to the review powers of 'Court' under the said Act, since the Code is applicable. Apart from that on principles also it appears that the provision of Section 5 has been engrafted in the statute on UNCITRAL Model Rules and one of the objectives of the said Act based on such Rules is 'to minimize the supervisory role of Courts in the arbitral process'. The Apex Court also recognized in Sri Subhalakshmi Fabrics Pvt. Ltd. : AIR2005SC2161 that the legislative intent underlying the said Act is to minimize the supervisory roles of Court in arbitral process (para 13, page 2167 of the report). It has also been recognized by the Apex Court in Konkan Railways Corporation Ltd. v. Mehul Construction Company reported in : AIR2000SC2821 that the said Act limits intervention of Court with an arbitral process to the minimum (Part 4, page 205 of the report). Therefore, the purport of Section 5 can be interpreted to mean that once an arbitral process has commenced, Civil Court ought not to interfere with the ongoing process unless there is a clear statutory mandate to that effect. But a petition under Section 9 is not necessarily an interference in the arbitral process. Most of the time proceeding under Section 9 are invoked before the commencement of an arbitral process. Therefore, the availability of the review powers of a Civil Court to a Section 9 proceeding cannot be ruled out in view of Section 5 of the said Act.
52. From the aforesaid discussion it is clear that 'Court' as defined under Section 2(e) of the said Act, is a Civil Court and not a 'persona designata'. Section 9 proceedings before such a Court are undoubtedly proceeding in a Court of a civil jurisdiction. While dealing with such proceedings, such Courts will 'have the same powers for making orders as it has for the purpose of and in relation to any proceedings before it'. This is the mandate of Section 9. There is no specific exclusion of review powers of a Civil Court as is there in the case of second appeal (Section 37(2) of the said Act).
53. Apart from the aforesaid statutory dispensation, there is the time-honoured doctrine which operates against any interpretation to exclude Civil Court's jurisdiction in the absence of a specific statutory intent. Here the statutory scheme is to the contrary as has been indicated in the concluding portion of Section 9.
54. Apart from that the principle of investiture of the jurisdiction of Civil Court of an established Court when it acts as a Civil Court under several statutes and when the statute is silent, is an age-old principle. This was recognized by the House of Lords in 1913 in National Telephone Co. (supra) and was then repeatedly affirmed by the Privy Council in Secretary of State (supra) in 1916 and again 1948 in Adaikappa Chettier (supra). The Apex Court recognized this principle in National Sewing Thread (supra). Since then this principle has been followed by Supreme Court in the context of various statutes (see: Maganlal v. Jaiswal Industries : [1989]3SCR696 , Maharashtra State Financial Corporation reported in : [1991]1SCR480a , Chandra Kanta Sinha v. Oriental Insurance Co. Ltd. reported in : [2001]3SCR759 .
55. Supreme Court followed this age-old principle in 777 (supra), while dealing with the provisions of the said Act. It has been clearly held in ITI that the provisions of the Code are applicable to proceedings before a Court under the said Act.
56. It is also fallacious to argue that the provisions of the Code are merely procedural. There are substantive provisions in it also. At times it is jurisprudentially difficult to distinguish between substantive and procedural parts of the Code as they are rolled up into one. So even if it is assumed that review is a substantive provision, there is no reason to urge that this provision in the Code is not available to a 'Court' under the said Act to which the entire Code is applicable. No such distinction has been made in ITI, nor is there any statutory indication in the said Act. The Review petitions before this Court are maintainable.
57. Now coming to the question of merits of the review petitions, this Court finds that the petitioners are basically urging two grounds in support of the review petition.
58. The first ground is that a part of the order passed in favour of the petitioner by the learned single Judge has been set aside by Division Bench without any cross-objection or cross-appeal being filed against the same by the respondent. It was urged that the learned single Judge in the order dated 24.3.2005 directed that the proceeds of the Bank Guarantees, when invoked, should be kept in a fixed deposit account pending the decision by Dispute Review Expert (hereinafter called DRE) or in the arbitration proceeding.
59. The second ground for review is that the hearing was concluded on 08.04.2005 and the Judgment was reserved. On 08.04.2005 the time to challenge the decision of DRE had not expired. As such it was not possible for the petitioner to find out whether the Division Bench will rely on the decision of DRE or whether the Bench would accept the submission of the respondent's counsel that the decision of DRE should not be relied upon as the respondent wants to challenge the same.
60. After the Judgment of the Division Bench was pronounced on 13th July, 2005, the petitioner came to know that the Division Bench did not consider the decision of D.R.E. on the ground that the time to challenge the same has not expired.
61. It was also asserted that the respondent did not challenge the decision of D.R.E. within the specified time.
62. The learned Counsel for the respondent contested both the above grounds for review.
63. It was submitted that the Division Bench by setting aside the directions of the learned trial Judge, referred to above, has not committed any error even in the absence of a cross-appeal. It was argued that the Division Bench, as Appeal Court, while dismissing an appeal may direct the passing of any order which 'ought' to have been passed by the first Court in accordance with its finding in the facts of the case. It was urged that in the facts of the case and having regard to the finding of the first Court, no directions for keeping the proceeds of the Bank Guarantee in a fixed deposit is called for.
64. The respondents further contended that the records would show the decision of DRE was made on 30.03.05 and before 28 days that is on 20.04.05 notice was issued by the respondent referring the matter to arbitration. It was the stand of the respondent that the said document dated 20.04.05 is to be treated as a notice under clause 25.2 of the contract dated contentions about the validity of the clause 25.2 of the contract in view of amended provision of Section 28 of Indian Contract Act. But for the purpose of this Review petition those contentions are not relevant.
65. Now the question is what is the scope and extent of Review power of a Civil Court. Undoubtedly here the provisions of Order 47 of the Code will govern the field.
66. Normally once a Judgment is pronounced, its finality can be questioned only in a mode known to law. Review is one of such legally known procedures but a review of a Judgment is a very rare step and the exercise of review power by a Court is a serious matter and the review power cannot be confused with appellate powers, far less can it be equated with the original hearing of the case.
67. As has been aptly stated by the Apex Court, 'a plea for review unless the first judicial view is manifestly distorted is like asking for the moon' (Northern India Caterers v. LT. Governor of Delhi reported in : [1980]2SCR650 ).
68. The rationale behind the principle of Review is acceptance of human fallibility and as against the principle of finality of litigation. These two principles must be balanced. In striking this balance, the Courts have always given due importance to see that precious judicial time is not wasted in rearguing a matter which has been heard and decided. That is why grounds of review have been so precisely indicated in Order 47 and which have received a rather rigid interpretation by Courts.
69. The learned Counsel for the petitioner has urged that the Courts have now given a rather liberal interpretation of those grounds and in support of that cited a few Judgments, which the Court would presently consider.
70. Reliance was placed on the Judgment of the Supreme Court in the case of Board of Control for Cricket, India v. Neta ji Cricket Club, reported in : AIR2005SC592 in support of the contention that principles of review have been very widely interpreted by the Apex Court.
71. In the BCCI case, the Apex Court was moved under Article 136 of the Constitution of India challenging an order dated 08.10.2004 passed by the Division Bench of the High Court admitting to Review petition. While admitting the Review petition, the Judges of the High Court observed that 'we had been misled by the undertaking on behalf of the first respondent herein'. (Page 596 of the report)
72. In paragraph 87 (Page 605 of the report) the Apex Court found on facts (1) an undertaking was given by a learned Counsel and (2) the Apex Court recorded whether the Division Bench of High Court was misled in view of such undertaking should be left to be decided by the High Court (paragraph 87, page 605 of the report). In such factual background, the Apex Court found, that the High Court's jurisdiction in entertaining the review application cannot be said to be 'ex facie bad in law' (para 88, page 605 of the report). The Court further held that a mistake on the part of the Court may call for a review of its order.
73. In that context, the Supreme Court explained the expression 'sufficient reason' in Order 47, Rule 1 of the CPC and held it would 'depend on the facts and circumstances of the case and would include a misconception on fact or law by a Court or even an Advocate and held that an application for Review can be filed on the principles of 'actus curie neminen gravabit (Para 90).
74. In paragraph 93 page 606 of the report the Apex Court held that it cannot be said that while entertaining review application the Court cannot take note of subsequent events 'in any situation whatsoever'. The Court modified its opinion by referring to the facts of the case by stating where the 'Court accepts its own mistake in understanding the nature and purport of the undertaking given by the learned senior counsel' and its effect on the facts of the case, the Court may take into consideration subsequent events in a review proceeding.
75. The ratio in the BCCI case is not attracted here. The ratio is based on two principle - (1) The High Court can always correct its own mistake when it feels it has made a mistake and that (2) The mistake of Court should not harm anybody. In BCCI case, it is clear that the Apex Court invoked those principles in the facts of the case. It has never been doubted that the High Court which is a Superior Court of Record of plenary jurisdiction has always the right and authority to correct its own mistake by way of review. For doing so High Court need not take recourse to provisions of the Code. It has the inherent power which is recognized under Article 215 of the Constitution. This has been laid down in M.M. Thomas v. State of Kerala and Ors. reported in : [2000]1SCR33 .
76. In MM. Thomas it was held if High Court notes an error in its order, it has not only the power but the duty to correct it. High Court's power in this regard is plenary. (See para 13, Page 673 of the report).
77. Here the Court does not feel that it has committed any error in the Judgment dated 13.07.05 and which needs correction. It is the petitioners who are seeking to invoke the review jurisdiction of the High Court to modify the said Judgment. So the grounds on this Review petition must have to come within the parameters of Order 47 of the Code. It is also nobody's case and it has not been argued by the petitioners that they have suffered for any 'act of Court'.
78. Now so far as the first ground of review is concerned it is on the footing that the Division Bench, in the absence of a cross appeal, while affirming the Judgment of the learned single Judge, modified a part of which it gave some protection to the petitioners.
79. In the facts of this case, this Court does not find any merit in such contentions and in any event it is not an error apparent on the face of the record for invocation of review powers.
80. The learned Judge of the first Court in the order dated 24.3.2005 held that no special equity had been made out to restrain invocation of bank guarantee and no fraud had been committed by the beneficiary. So invocation of bank guarantee could not be restrained. It also held that the plea of irretrievable injury to the petitioners was not tenable. It also held that respondent being a governmental authority it can always be asked to refund the sum to the petitioner if it is found that invocation is wrong. Having held that the learned Judge could not have ordered that proceeds realised by the respondent after invocation of bank guarantee is to be kept in a fixed deposit.
81. No cross objection by the respondent is required to be filed for such direction to be modified by the Appeal Court. The Appeal Court when dismissing an appeal may direct passing of any order which ought to have been made by the first Court in consonance with the findings of fact and law as appreciated by the Court below. Here the Appeal Court in its Judgment dated 13.07.2005 has merely done that. This power is entrusted with the Appeal Court.
82. Reference in this connection may be made to the decision of the Apex Court in the case of Banarsi and Ors. v. Ram Phal reported in (2003) 1 SCC 606. In paragraph 15, page 617 of the report, the Apex Court explained the wide powers of the Appeal Court under Order 41, Rule 33, read with Rule 4. So there is no substance in the first ground of review.
83. Now the decision which has been cited by the learned Counsel for the petitioners in this connection was the one rendered in Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai reported in : 2004(176)ELT24(SC) . In that case Supreme Court was dealing with rights of the party in an appeal by Special Leave and held that in an appeal by Special Leave, cross-objections do not lie and the Court held that the exercise of the appellate jurisdiction under Article 136 is not dependent on Order 41 of CPC (see para 36, page 1831 of the report). It is obvious that the ratio in Jamshed Hormusji is not of much relevance here.
84. Now coming to the second ground of review, this Court finds that the Court was never misled by any submission by the counsel for the respondent. The Court recorded the submission of the counsel for the respondent, internal page at 6-7, of the Judgment. But applied the law relating to bank guarantee on the terms of the bank guarantee furnished in this case and its terms have been extensively quoted.
85. After quoting clause of the bank guarantee, the Court held that the same is an unconditional one and not dependent on 'any of the clause in the principal agreement' (see internal page 11 of the Judgment), namely the agreement between the parties which contains the arbitration clause. Whether that decision is correct or not cannot be assailed in a Review petition.
86. Apart from that from the facts noted above it appears that on 20.04.05 which is within 28 days of 30.03.05 when the decision of D.R.E. was published, a notice sent by the respondents and they claimed that the same is to be treated as a notice under clause 25.2 of the Contract. Whether the same is a valid notice to invoke arbitration is not to be decided in this Review petition.
87. So this Court holds that the Review petitions, even though maintainable, are not to be entertained on merits as no ground for review under Order 47 has been disclosed.
88. Accordingly both the Review petitions are dismissed. All interim orders are vacated.
No order as to costs.
Urgent xerox certified copy, if applied for, may be given to the parties immediately on completion of usual formalities.
Sailendra Prasad Talukdar, J.
89. I agree.